The Never-Ending War

In 2005, Texas created a tiered system it used to distribute federal grant money to medical clinics. Those at the bottom of the list were unlikely to receive any money at all. The point was to direct public funds away from family-planning clinics and abortion providers, so clinics like Planned Parenthood found themselves at the bottom. This spring, the Texas Legislature went further to create a three-tiered system that will likely leave Planned Parenthood with little to no funding.

Texas's isn't the only legislature launching a renewed effort to attack both abortion rights and reproductive health care. Anti-abortion advocates seem to be trying any and all legislation to see what sticks in court and are finding creative ways to circumvent Roe v. Wade. One of the newest strategies is modeled on Texas's tiered-funding system.

This spring, Kansas lawmakers and Governor Sam Brownback boasted that they were going to "zero out" funding to Planned Parenthood using an amendment to the state appropriations bill that prioritized which health-care providers could receive Title X funding -- the program that provides family-planning funding for services to the poor -- much the way Texas does. Kansas now mandates that these Title X grants go first to public health-care providers, then to hospitals and non-public providers that also provide primary care, known as federally qualified health centers. Planned Parenthood, as a provider focused on family planning and reproductive care, belongs to neither of these groups. This makes Planned Parenthood ineligible for Title X funds in Kansas because licensing rules for federally qualified health centers require a broader range of primary care services than Planned Parenthood provides.

Planned Parenthood of Kansas and Mid-Missouri challenged the law in court and asked a judge yesterday to place an injunction against the law until the case is resolved. Federal District Judge J. Thomas Martin ruled in their favor, giving the clinics a reprieve until the case is heard. If the law is struck down, then the tiered-funding scheme probably won't spread to other states. But if the courts uphold the law, it would strip $330,000 from Planned Parenthood clinics in Kansas, forcing at least one to shut down and another to raise the costs of services. There are three Planned Parenthood clinics in Kansas, and two rely heavily on Title X funds. The nearly 6,000 patients treated in the two affected Kansas clinics will either be forced to pay much more or look elsewhere, often farther from their homes, for care. It would also signal to other state legislatures trying to defund Planned Parenthood that a tiered system is the most effective strategy.

Sarah Wheat, co-CEO of Planned Parenthood of Austin, Texas, says that it's a "highly effective strategy" when it comes to virtually defunding their clinics and programs without officially doing so. But the question is, will it stand up in court?

Courts have consistently said that states can't superimpose their own funding requirements on federal programs, says Sara Rosenbaum, a law professor at George Washington University. Making a list to determine which clinics receive funds first violates what is known as the supremacy clause. Planned Parenthood also charges that the new requirements violate their constitutional rights. Because the bill has been touted by lawmakers such as Brownback as a measure intended to cut off funding to abortion, Planned Parenthood argues that it is being discriminated against based on its advocacy for and connection with abortion -- violating its First Amendment rights to freedom of speech and association. Moreover, unable to fund both its Title X-reliant clinics, Planned Parenthood would have to close at least one of them. The result would violate the patients' right to choose an abortion by placing an undue burden on them -- a constitutional standard established in the 1990s.

In response, the state is arguing that its ability to place extra conditions upon Title X grantees is a state's rights issue. State attorneys, writing in a legal response to Planned Parenthood, say that "the proposed injunction would violate the State's sovereignty and unconstitutionally replace the State's discretion with the Court's judgment." Judge Martin disagreed enough to offer the injunction.

Planned Parenthood and other abortion-rights groups are often the only groups working to ensure that unconstitutional infringements on reproductive rights are stopped -- or at least stalled -- in the courts. These organizations are the first line of defense, but anti-abortion advocates hope that a different case pending before the Supreme Court will curb Planned Parenthood's ability to fight in courts, too. The case is unrelated to abortion, but it could end up having a big affect on cases like the one in Kansas and the reproductive-rights battle overall.

In Douglas v. Independent Living Center of Southern California, the Supreme Court will take on a trio of Medicaid cases in which providers are suing the state of California for improperly dispensing funds in violation of the federal Medicaid Act. The case will address whether or not private entities that receive these funds, rather than the federal government itself, have standing to enforce the Medicaid Act in court. This could pose a problem for Planned Parenthood's cases -- potentially in Kansas but certainly in other states -- because the Court could find they no longer have standing and throw the cases out. In Indiana, where Planned Parenthood brought a suit against the state's defunding law, the state tried to postpone the suit until the Supreme Court ruled on this case. The Indiana case proceeded anyway. The Court will hear the Douglas case in October and could have an opinion early this winter.

While cases protecting federal family-planning funding are well grounded in precedent, there's no guarantee the courts won't change their minds. And as soon as one state finds the magic law that the courts will uphold to defund the organization, you can trust that several more states will follow.